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Current uncertainty in the legal position on the excavation and retention of human remains
In England, there are two Acts of Parliament which effectively cover the excavation of human remains:
The Burial Act 1857: This covers all exhumations, except where later legislation is relevant to a particular proposal (see 1981 Act below). The 1857 Act makes the removal of buried human remains an offence unless a licence from the new Ministry of Justice (previously the Department of Constitutional Affairs, and before that the Home Office) has first been obtained (or, where Christian consecrated ground is concerned and the remains are to be reburied elsewhere, a faculty has been issued). For burials over 100 years old, licences were until now granted without consents other than from the landowner.
The Disused Burial Grounds (Amended) Act 1981: This amended the Disused Burial Grounds Act 1884. Disused means a burial ground that has at any time been set apart for the purpose of interment and is no longer used for interments. For burials over 50 years old, the prior removal and reinterment or cremation of burials must be undertaken where a building is to be erected on the burial ground. The former Department of Constitutional Affairs and Home Office did not generally apply the 1981 Act to burials more than about 500 years old. Furthermore, although the Act refers to reinterment or cremation, proposals for long-term retention of human remains in museums and archaeological units for the purpose of scientific research were always considered on a case by case basis.
There are several other acts covering burials on the UK Legal Statutes they can be found here…
Current legal uncertainty
The new Ministry of Justice has recently advised that many proposals for licences to excavate human remains are not covered by any legislation under these burial laws.
In particular, the Ministry of Justice has advised that the 1981 Act applies to disused burial grounds irrespective of their age (ie. including those over 500 years old), as long as the ground is still a burial ground, even if disused, and has not passed into other use. In such cases, the Ministry of Justice advises that it can neither authorise nor prohibit the study of human remains or the removal of samples from them for analysis. In effect, they advise that, under the 1981 Act, reburial of the human remains should take place, as a legal requirement.
However, if human remains are excavated unexpectedly (as is often the case with development and building work), and if a burial ground has passed into other use (e.g. if it has already been built over), it is unlikely that either Act applies. In such cases, archaeologists and developers would be free to proceed with excavation, study, sampling and retention of human remains without a legal requirement to obtain licences.
The current situation is that English Heritage is advising archaeologists to apply to the Ministry of Justice in advance if they expect to encounter burials, to clarify the status of the site concerned, and whether any legislation applies. English Heritage is working with the Ministry of Justice to clarify the situation. HAD are looking into possibilities of contributing to this discussion.